ILLINOIS POLLUTION CONTROL BOARD
December 18, 2008
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
FELKER PHARMACY, INC. and ROD
BENNETT CONSTRUCTION, INC.,
Respondents.
)
)
)
)
)
)
)
)
)
)
PCB 08-17
(Enforcement - Water)
_____________________________________
ROD BENNETT CONSTRUCTION, INC.,
Third-Party Complainant,
v.
MCCLELLAN BLAKEMORE
ARCHITECTS, INC. and WENDLER
ENGINEERING SERVICES, INC.,
Third-Party Respondents.
)
)
)
)
)
)
)
)
)
)
)
PCB 08-17
(Citizens Enforcement - Water)
(Third-Party Complaint)
ORDER OF THE BOARD (by G.T. Girard):
On November 18, 2008, Rod Bennett Construction, Inc. (Bennett) filed a stipulation and
proposal for settlement (Stip.) and on November 19, 2008, a motion for relief from the hearing
requirement. Bennett seeks to settle the third-party complaint as to third-party respondent
Wendler Engineering Services, Inc. (Wendler). For the reasons discussed below the Board
declines to accept the settlement.
PROCEDURAL BACKGROUND
On August 20, 2007, the People of the State of Illinois by the Attorney General, on her
own motion and at the request of Illinois Environmental Protection Agency (People), filed a
three-count complaint against Felker Pharmacy, Inc. (Felker) and Bennett (collectively,
respondents).
See
415 ILCS 5/31(c)(1) (2006); 35 Ill. Adm. Code 103.204. The complaint
concerns the Synder Pharmacy site located at Galena Avenue and Everett Street, Dixon, Lee
County. On August 23, 2007, the Board accepted the complaint for hearing.
2
On December 10, 2007, Bennett filed a third-party complaint against McClellan
Blakemore Architects, Inc. (McClellan) and Wendler Engineering Services, Inc. (Wendler)
(collectively, third-party respondents). On March 20, 2008, the Board accepted that compliant.
PROPOSED STIPULATION AND SETTLEMENT
The proposed stipulation and settlement includes many terms, including indicating a
desire to avoid costly and time consuming litigation by settling the matter. Stip. at 1. Further,
the stipulation provides:
Without admitting or denying any facts or assertions in this matter, Third Party
Respondent Wendler will pay five thousand dollars ($5,000.00) to Respondent
[Bennett] in full satisfaction of all claims in this matter.
Id
.
The stipulation requires payment of the $5,000 to Bennett’s attorney to hold until the Board
enters an order accepting the stipulation. Stip. at 2. The payment is contingent on the People
and respondents settling their action as well.
Id
. The payment of $5,000 will result in Bennett
agreeing to “indemnify and hold harmless” the third-party respondents.
Id
. The stipulation and
settlement are not signed by any of the parties. Stip. at 2-3.
DISCUSSION
The Board has accepted a stipulation and proposal for settlement in a citizen’s
enforcement case.
See
York High Neighborhood Committee
et al
v. Elmhurst Public School,
District 205, PCB 05-93 (July 12, 2007). The Board is authorized to accept such stipulations
under Section 31(d)(2) of the Environmental Protection Act (Act) (415 ILCS t/31(d)(2) (2006)).
Section 31(d)(2) of the Act provides:
Whenever a complaint has been filed by a person other than the Attorney General
or State’s Attorney, the parties may file with the Board a stipulation and proposed
settlement accompanied by a request for relief from the hearing requirement of
Section 31(c)(1) of the Act [415 ILCS 5/31(c)(1) (2006)]. Unless the Board, in its
discretion, concludes that a hearing should be held, no hearing on the stipulation
and proposal for settlement is required. 415 ILCS 5/31(d)(2) (2006)
see also
35
Ill. Adm. Code 103.301.
Under the Board’s procedural rules the content of the stipulation is set forth. Specifically under
Section 103.302 the stipulation:
A proposed stipulation and settlement agreement must contain a written
statement, signed by the parties or their authorized representatives, outlining the
nature of, the reasons for, and the purpose to be accomplished by the settlement.
The written statement must include:
a)
A full stipulation of all material facts pertaining to the nature,
extent, and causes of the alleged violations proposed to be settled;
3
b)
The nature of the relevant parties’ operations and control
equipment;
c)
Facts and circumstances bearing upon the reasonableness of the
emissions, discharges, or deposits involved, including:
1)
the character and degree of injury to, or interference with
the protection of the health, general welfare and physical
property of the people
;
2)
the social and economic value of the pollution source;
3)
the suitability or unsuitability of the pollution source to the
area in which it is located, including the question of
priority of location in the area involved;
4)
the technical practicability and economic reasonableness
of reducing or eliminating the emissions, discharges or
deposits resulting from such pollution source; and
5)
any subsequent compliance.
[415 ILCS 5/33(c)]
d)
Details as to future plans for compliance, including a description of
additional control measures and the dates for their implementation,
if any; and
e)
The proposed penalty, if any, supported by factors in mitigation or
aggravation of penalty, including the factors set forth in Section
42(h) of the Act [415 ILCS 5/42(h)]. 35 Ill. Adm. Code 103.302
The stipulation and settlement filed does not conform to the content requirements of the
Board’s procedural rules and was not signed. For this reason alone, the Board could reject the
stipulation. However, the Board also cannot approve the stipulation because the stipulation
requires payment of funds to a private party.
The Board, as an administrative agency, is a “creature of statute, and therefore has only
the authority given to it by the Act. Granite City Div. of Nat. Steel Co. v. PCB, 155 Ill. 2d 149,
171, 613 N.E.2d 719, 729 (1993); see also Bevis v. PCB
, 289 Ill. App. 3d 432, 437, 681 N.E.2d
1096, 1099 (5th Dist. 1997); McHenry County Landfill, Inc. v. IEPA, 154 Ill. App. 3d 89, 95,
506 N.E.2d 372, 376 (2nd Dist. 1987). Under the Act, the Board is authorized to impose civil
penalties for violation of the Act payable to public funds, not private parties. 415 ILCS 5/33(b)
42 (2006),
see also
Kulpaka v. Mandel
, PCB 92-33 (July 30, 1992) slip op. 9; Miehle v. Chicago
Bridge and Iron Company, PCB 93-150 (Nov. 4, 1993) slip op. at 12; Schratz
et al
. v. Village of
Villa Park
et al
., PCB 93-161 (Oct. 21, 1993) slip op. 6. The Act also authorizes the Board to
order a party to cease and desist.
Id
.
4
In addition to express statutory authority in the Act, the Supreme Court of Illinois has
provided case law establishing that the Board may award site clean-up costs. In People v. Fiorini
143 Ill.2d 318, 574 N.E.2d 612 (1991)
,
the Supreme Court held that although the award of
cleanup costs is not expressly provided for in the Act, it would not hold that such an award
would not be an available remedy for a violation of the Act under appropriate facts. The Board
has thus consistently held that the Board may award the costs of clean-up at site.
See
Grand Pier
Center, LLC
et al
. v. River East LLC
et al
., PCB 05-157 (May 19, 2007) and Lake County Forest
Preserve District v. Ostro, PCB 92-80 (Mar. 31, 1994).
The requested award of $5000 is not for clean-up of the site and therefore, the Board
lacks the authority under the Act to order such payment. Therefore, the Board rejects the
proposed stipulation and settlement filed by Bennett and the motion for relief from the hearing
requirement is thereby moot.
IT IS SO ORDERED.
I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the Board adopted the above order on December 18, 2008, by a vote of 5-0.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
